View:
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of
the Securities Exchange Act of 1934
Date of Report: September 20, 1996
Date of earliest event reported: September 19, 1996
ASHLAND INC.
(Exact name of registrant as specified in its charter)
Kentucky
(State or other jurisdiction of incorporation)
1-2918 61--0122250
(Commission File Number) (I.R.S. Employer
Identification No.)
1000 Ashland Drive, Russell, Kentucky 41169
(Address of principal executive offices) (Zip Code)
P.O. Box 391, Ashland, Kentucky 41114
(Mailing Address) (Zip Code)
Registrant's telephone number, including area code (606) 329-3333
Item 5. Other Events
At its meeting held on September 19, 1996, the Board of Directors
voted to amend Article II, Section 2, Article III, Section 3, and Article
V, Section 4 of the Registrant's Bylaws. The Bylaws of Registrant, as
amended, are attached hereto.
Also at the September 19, 1996 meeting, as previously announced, Paul
W. Chellgren was formally elected by the Board of Directors as Chief
Executive Officer of Registrant effective October 1, 1996, at which time
John R. Hall will retire from such position.
Item 7. Financial Statements and Exhibits
(c) Exhibits
3.2 Bylaws of Ashland Inc. as amended to September 19, 1996.
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934,
the registrant has duly caused this report to be signed on its behalf by
the undersigned hereunto duly authorized.
ASHLAND INC.
------------------------------
(Registrant)
Date: September 20, 1996 /s/ James G. Stephenson
------------------------------
Name: James G. Stephenson
Title: Vice President-Law
EXHIBIT INDEX
EXHIBIT NUMBER PAGE NO.
3.2 Bylaws of Ashland Inc. as amended
to September 19, 1996.
[LOGO] ASHLAND
ASHLAND INC.
BY-LAWS
As Effective September 19, 1996
BY-LAWS
OF
ASHLAND INC.
ARTICLE I
OFFICES
SECTION 1. Registered Office. The registered office of the
Corporation in the Commonwealth of Kentucky shall be at Ashland Drive, City
of Russell, Greenup County. The names of the registered agents located
thereat shall be designated by the Board from time to time by a resolution
adopted by a majority of the Board.
SECTION 2. Other Offices. The Corporation may also have offices at
other places either within or without the Commonwealth of Kentucky.
ARTICLE II
MEETINGS OF SHAREHOLDERS
SECTION 1. Annual Meetings. The annual meeting of the shareholders for
the election of directors and for the transaction of such other business as
may properly come before the meeting shall be held at the principal office
of the Corporation on the last Thursday of January, annually, at the hour
of ten thirty a.m., or at such other place (within or without the
Commonwealth of Kentucky), date and hour as shall be designated in the
notice thereof.
SECTION 2. Annual Meeting Business. To be properly brought before an
annual meeting, business must be (i) specified in the notice of the meeting
(or any supplement thereto) given by or at the direction of the Board of
Directors, (ii) otherwise properly brought before the meeting by or at the
direction of the Board of Directors or (iii) otherwise properly brought
before the meeting by a shareholder. For business to be properly brought
before an annual meeting by a shareholder, the shareholder must have given
written notice thereof, either by personal delivery or by United States
mail, postage prepaid, to the Secretary of the Corporation, not later than
90 days in advance of such meeting (provided that if the annual meeting of
shareholders is held earlier than the last Thursday in January, such notice
must be given within 10 days after the first public disclosure, which may
include any public filing with the Securities and Exchange Commission, of
the date of the annual meeting). Any such notice shall set forth as to each
matter the shareholder proposes to bring before the annual meeting (i) a
brief description of the business desired to be brought before the meeting
and the reasons for conducting such business at the meeting and in the
event that such business includes a proposal to amend either the Second
Restated Articles of Incorporation or By-laws of the Corporation, the
language of the proposed amendment, (ii) the name and address of the
shareholder proposing such business, (iii) a representation that the
shareholder is a holder of record of stock of the corporation entitled to
vote at such meeting and intends to appear in person or by proxy at the
meeting to propose such business, (iv) any material interest of the
shareholder in such business, and (v) a representation as to whether or not
the shareholder will solicit proxies in support of his proposal. No
business shall be conducted at an annual meeting of shareholders except in
accordance with this paragraph and the chairman of any annual meeting of
shareholders may refuse to permit any business to be brought before an
annual meeting which fails to comply with the foregoing procedures or, in
the case of a shareholder proposal, if the shareholder fails to comply
with the representations set forth in the notice.
SECTION 3. Special Meetings. A special meeting of the shareholders
may be called by the Board of Directors, the Chairman of the Board, any
Vice Chairman of the Board or the President, at such place (within or
without the Commonwealth of Kentucky), date and hour as shall be designated
in the notice thereof. The Secretary shall call a special meeting of the
shareholders, to be held on such date as the Secretary shall determine, on
the request in writing of the holders of shares of capital stock of the
Corporation entitled to vote at such meeting which represent one-third or
more of the total votes entitled to be cast at such meeting. Such request
shall set forth: (i) the action proposed to be taken at such meeting and
the reasons for the action; (ii) the name and address of each of such
holders who intends to propose action be taken at such meeting; (iii) a
representation that each is a holder of record of stock of the Corporation
entitled to vote at such meeting and intends to appear in person or by
proxy at such meeting to propose the action specified in the request; (iv)
any material interest of any shareholder in such action; and (v) in the
event that any proposed action consists of or includes a proposal to amend
either the Second Restated Articles of Incorporation or the By-laws of the
Corporation, the language of the proposed amendment. The Secretary may
refuse to call a special meeting unless the request is made in compliance
with the foregoing procedure.
SECTION 4. Notice of Meetings. Except as otherwise expressly required
by law, notice of each meeting of the shareholders shall be given not less
than ten nor more than sixty days before the date of the meeting to each
shareholder entitled to vote at such meeting by mailing such notice,
postage prepaid, directed to the shareholder at his address as it appears
on the records of the Corporation. Every such notice shall state the place,
date and hour of the meeting and, in the case of a special meeting, the
purpose or purposes for which the meeting is called. Except as otherwise
expressly required by law, notice of any adjourned meeting of the
shareholders need not be given if the date, time and place thereof are
announced at the meeting at which the adjournment is taken, unless the
adjournment is for more than 120 days or after the adjournment a new record
date is fixed for the adjourned meeting.
SECTION 5. Record of Shareholders. It shall be the duty of the
officer or agent of the Corporation who shall have charge of its stock
transfer books to prepare and make a complete record of the shareholders
entitled to vote at any meeting of shareholders or adjournment thereof,
arranged by voting group (and within each voting group by class or series),
and showing the address of each shareholder and the number of shares
registered in the name of each shareholder. Such record shall be produced
at the time and place of the meeting and shall be open to the inspection of
any shareholder entitled to vote at such meeting or any adjournment thereof
during the whole time of such meeting or adjournment for the purposes
thereof.
SECTION 6. Quorum. At each meeting of the shareholders or adjournment
thereof, except as otherwise expressly required by law, these By-laws or
the Second Restated Articles of Incorporation, shareholders holding a
majority of the shares of the Corporation issued and outstanding and
entitled to be voted thereat shall be present in person or by proxy to
constitute a quorum for the transaction of business. The shareholders
present at a duly organized meeting can continue to do business until
adjournment, notwithstanding the withdrawal of enough shareholders to leave
less than a quorum.
SECTION 7. Organization. At each meeting of the shareholders, one of
the following shall act as chairman of the meeting and preside thereat, in
the following order of precedence:
(a) the Chairman of the Board;
(b) a Vice Chairman of the Board in order of rank of seniority in
office;
(c) the President; or
(d) any other officer of the Corporation designated by the Board or
the Executive Committee to act as chairman of such meeting and to preside
thereat if the Chairman of the Board, each Vice Chairman of the Board and
the President shall be absent from such meeting.
The Secretary or, if he shall be absent from such meeting, the person
(who shall be the Deputy Secretary or an Assistant Secretary of the
Corporation, if one of such officers shall be present thereat) whom the
chairman of such meeting shall appoint, shall act as secretary of such
meeting and keep the minutes thereof.
SECTION 8. Order of Business. The order of business at each meeting
of the shareholders shall be determined by the chairman of such meeting,
but such order of business may be changed by a majority in voting interest
of those present in person or by proxy at such meeting and entitled to vote
thereat.
SECTION 9. Voting. Except as otherwise expressly required by law,
these By-laws, or the Second Restated Articles of Incorporation, each
shareholder entitled to vote shall, at each meeting of the shareholders,
have one vote (except that at each election for directors each such
shareholder shall have the right to cast as many votes in the aggregate as
he shall be entitled to vote under the Second Restated Articles of
Incorporation multiplied by the number of directors to be elected at such
election; and each shareholder may cast the whole number of votes for one
candidate, or distribute such votes among two or more candidates), in
person or by proxy, for each share of the Corporation held by him and
registered in his name on the books of the Corporation:
(a) on the date fixed pursuant to the provisions of Section 6 of
Article VIII of these By-laws as the record date for the determination of
shareholders who shall be entitled to receive notice of and to vote at such
meeting, or
(b) if no record date shall have been so fixed, then at the close of
business on the day on which notice of such meeting shall be given.
Shares of the Corporation's stock belonging to a majority-owned
subsidiary of the Corporation shall not be counted in determining the total
number of outstanding shares and shall neither be entitled to vote nor
counted for quorum purposes. Any vote of shares of the Corporation may be
given at any meeting of the shareholders by the shareholders entitled
thereto in person or by proxy appointed by an instrument in writing by the
shareholder or his duly authorized attorney-in-fact. The attendance at any
meeting of a shareholder who may theretofore have given a proxy shall not
have the effect of revoking the same unless he shall in writing so notify
the Secretary.
At all meetings of the shareholders each matter, except as otherwise
expressly required by law, these By-laws or the Second Restated Articles of
Incorporation, shall be approved if the votes cast in favor of such matter
exceed the votes cast opposing such matter.
Except as otherwise expressly required by law, the vote at any
meeting of the shareholders on any question need not be by ballot, unless
so directed by the chairman of the meeting. On a vote by ballot each ballot
shall be signed by the shareholder voting, or by his proxy, if there be
such proxy, and shall state the number of shares voted.
ARTICLE III
BOARD OF DIRECTORS
SECTION 1. General Powers. The business and affairs of the Corporation
shall be managed by the Board of Directors.
SECTION 2. Number and Term of Office. Except as otherwise provided by
law, the number of directors which shall constitute the Board of Directors
shall be fixed from time to time by a resolution adopted by a majority of
the Board of Directors. So long as the Board of Directors shall consist of
nine or more members, the directors shall be classified with respect to the
time for which they shall severally hold office, by dividing them into
three classes, as nearly equal in number as possible. Each class shall be
elected at the annual meeting of shareholders held in 1986 for terms which
will expire as follows: one class of directors to be originally elected for
a term expiring at the annual meeting of shareholders to be held in 1987;
the second class of directors to be originally elected for a term expiring
at the annual meeting of shareholders to be held in 1988; and the third
class of directors to be originally elected for a term expiring at the
annual meeting of shareholders to be held in 1989.
At each annual meeting of shareholders beginning in 1987, successors
to the class of directors whose term then expires shall be elected to serve
for a term expiring at the annual meeting of shareholders held in the third
year following the year of their election and until their successors shall
have been elected and qualified; provided, that the successor to a director
whose term expires at such annual meeting because he was elected to fill a
vacancy on the board may, if so specified by the Board of Directors, be
elected to serve for a term expiring at the annual meeting of shareholders
held in the first or second year following the year of his election and
until his successor shall have been elected and qualified. The Board of
Directors shall increase or decrease the number of directors in one or more
classes as may be appropriate whenever it increases or decreases the number
of directors in order to ensure that the three classes remain as nearly
equal in number as possible. No decrease in the number of directors
constituting the Board of Directors shall shorten the term of any incumbent
director.
SECTION 3. Nomination. Nominations for the election of directors may
be made by the Board of Directors or by any shareholder entitled to vote
for the election of directors. Any shareholder entitled to vote for the
election of directors at a meeting may nominate a person or persons for
election as directors only if written notice of such shareholder's intent
to make such nomination is given, either by personal delivery or by United
States mail, postage prepaid, to the Secretary of the Corporation, not
later than (i) with respect to an election to be held at an annual meeting
of shareholders, 90 days in advance of such meeting (provided that if the
annual meeting of shareholders is held earlier than the last Thursday in
January, such notice must be given within 10 days after the first public
disclosure, which may include any public filing with the Securities and
Exchange Commission, of the date of the annual meeting) and (ii) with
respect to an election to be held at a special meeting of shareholders for
the election of directors, the close of business on the seventh day
following the date on which notice of such meeting is first given to
shareholders. Each such notice shall set forth: (a) the name and address of
the shareholder who intends to make the nomination and of the person or
persons to be nominated; (b) a representation that the shareholder is a
holder of record of stock of the Corporation entitled to vote at such
meeting and intends to appear in person or by proxy at the meeting to
nominate the person or persons specified in the notice; (c) a description
of all arrangements or understandings between the shareholder and each
nominee and any other person or persons (naming such person or persons)
pursuant to which the nomination or nominations are to be made by the
shareholder; (d) such other information regarding each nominee proposed by
such shareholder as would have been required to be included in a proxy
statement filed pursuant to the proxy rules of the Securities and Exchange
Commission had each nominee been nominated, or intended to be nominated, by
the Board of Directors; (e) the consent of each nominee to serve as a
director of the Corporation if so elected; and (f) a representation as to
whether or not the shareholder will solicit proxies in support of his
nominee(s). The chairman of any meeting of shareholders to elect directors
and the Board of Directors may refuse to acknowledge the nomination of any
person not made in compliance with the foregoing procedure or if the
shareholder fails to comply with the representations set forth in the
notice.
SECTION 4. Election. Except as otherwise expressly provided in the
Second Restated Articles of Incorporation, at each meeting of the
shareholders for the election of directors at which a quorum is present,
the persons receiving the greatest number of votes, up to the number of
directors to be elected, shall be the directors.
SECTION 5. Resignation, Removal and Vacancies. Any director may
resign at any time by giving written notice of his resignation to the
Chairman of the Board, any Vice Chairman of the Board, the President or the
Secretary. Any such resignation shall take effect at the time specified
therein, or, if the time when it shall become effective shall not be
specified therein, then it shall take effect when accepted by action of the
Board. Except as aforesaid, the acceptance of such resignation shall not be
necessary to make it effective.
Any or all directors may be removed at a meeting of the shareholders
called expressly for that purpose (i) in the case of a removal of a
director for cause, by a vote of the holders of a majority of the voting
power of the then outstanding voting stock of the Corporation, voting
together as a single class, or (ii) in the case of a removal of a director
without cause, by a vote of the holders of at least 80% of the voting power
of the then outstanding voting stock of the Corporation, voting together as
a single class. If less than all the directors are to be removed, no one of
the directors may be removed if the votes cast against his removal would be
sufficient to elect him if then cumulatively voted at an election of the
entire Board or, if there be classes of directors, at an election of the
class of directors of which he or she is a part. For purposes of this
Section 5, "cause" shall mean the willful and continuous failure of a
director to substantially perform such director's duties to the Corporation
(other than any failure resulting from incapacity due to physical or mental
illness) or the willful engaging by a director in gross misconduct
materially and demonstrably injurious to the Corporation. As used in these
By-laws, "voting stock" shall mean shares of capital stock of the
Corporation entitled to vote generally in the election of directors.
Any vacancy occurring on the Board may be filled by a majority of the
directors then in office, though less than a quorum, and the director
elected to fill such vacancy shall hold office until the next annual
meeting of shareholders at which directors are elected and until his
successor is elected and qualified.
SECTION 6. Meetings.
(A) Annual Meetings. As soon as practicable after each annual
election of directors, the Board shall meet for the purpose of organization
and the transaction of other business.
(B) Regular Meetings. Regular meetings of the Board shall be held at
such dates, times and places as the Board shall from time to time
determine.
(C) Special Meetings. Special meetings of the Board shall be held
whenever called by the Chairman of the Board, any Vice Chairman of the
Board, the President or upon the written request of a majority of the
members of the whole Board filed with the Secretary. Any and all business
may be transacted at a special meeting which may be transacted at a regular
meeting of the Board.
(D) Place of Meeting. The Board may hold its meetings at such place
or places within or without the Commonwealth of Kentucky as the Board may
from time to time by resolution determine or as shall be designated in the
respective notices or waiver of notices thereof.
(E) Notice of Meetings. Notices of regular meetings of the Board or
of any adjourned meeting need not be given.
Notices of special meetings of the Board, or of any meeting of any
committee of the Board which has not been fixed in advance as to time and
place by such committee, shall be mailed by the Secretary to each director,
or member of such committee, addressed to him at his residence or usual
place of business, at least two days before the day on which such meeting
is to be held, or shall be sent to him by telegraph, cable or other form of
recorded communication or be delivered personally or by telephone not later
than the day before the day on which such meeting is to be held. Such
notice shall include the date, time and place of such meeting, but any such
notice need not specify the business to be transacted at, or the purpose
of, any such meeting. Notice of any such meeting need not be given to any
director or member of any committee, however, if waived by him in writing,
whether before or after such meeting shall be held, or if he shall be
present at such meeting, unless the director at the beginning of the
meeting (or promptly upon his or her arrival) objects to holding the
meeting or transacting business at the meeting and does not thereafter vote
for or assent to action taken at the meeting.
(F) Quorum and Manner of Acting. A majority of the number of
directors fixed by or in the manner provided in these By-laws or in the
Second Restated Articles of Incorporation shall be present in person at any
meeting of the Board in order to constitute a quorum for the transaction of
business at such meeting, and the vote of a majority of those directors
present at any such meeting at which a quorum is present shall be necessary
for the passage of any resolution or act of the Board, except as otherwise
expressly required by law, these By-laws or the Second Restated Articles of
Incorporation.
(G) Action by Consent. Any action required or permitted to be taken
at any meeting of the Board, or of any committee thereof, may be taken
without a meeting if all members of the Board or committee, as the case may
be, consent thereto in writing, and such writing is filed with the minutes
of the proceedings of the Board or committee.
(H) Meeting by Telephone. Any meeting of the Board, or of any
committee thereof may be conducted through the use of any means of
communication by which all persons participating in the meeting can hear
and speak to each other, and the directors' participation in such a meeting
shall constitute presence in person at the meeting for all purposes.
(I) Organization. At each meeting of the Board, one of the following
shall act as chairman of the meeting and preside thereat, in the following
order of precedence:
(a) the Chairman of the Board;
(b) a Vice Chairman of the Board in order of rank of seniority in
office; or
(c) the President.
SECTION 7. Compensation. The Board of Directors may fix such amount
per annum and such fees to be paid by the Corporation to directors for
attendance at meetings of the Board or of any committee, or both, as the
Board shall from time to time determine. The Board may likewise provide
that the Corporation shall reimburse each director or member of a committee
for any expenses incurred by him on account of his attendance at any such
meeting. Nothing contained in this Section shall be construed to preclude
any director from serving the Corporation in any other capacity and
receiving compensation therefor.
ARTICLE IV
COMMITTEES
SECTION 1. Executive Committee.
(A) Designation and Membership. The Board may, by resolution passed
by a majority of the whole Board, designate an Executive Committee
consisting of the Chairman of the Board, each Vice Chairman of the Board,
the President and such additional number of directors as the Board shall
determine. Vacancies may be filled by the Board at any time and any member
of the Executive Committee shall be subject to removal, with or without
cause, at any time by resolution passed by a majority of the whole Board.
(B) Functions and Powers. The Executive Committee, subject to any
limitations prescribed by the Board, shall possess and may exercise, during
the intervals between meetings of the Board, all the powers and authority
of the Board in the management of the business and affairs of the
Corporation; provided, however, that the Executive Committee shall not have
the power or authority to approve amendments to the Second Restated
Articles of Incorporation, adopt agreements of merger or consolidation,
recommend to the shareholders the sale, lease or exchange of all or
substantially all the property and assets of the Corporation, recommend to
the shareholders the dissolution of the Corporation or the revocation of a
dissolution, amend these By-laws or to take any other action which a
committee is prohibited by law from taking.
At each meeting of the Board the Executive Committee shall make a
report of all action taken by it since its last report to the Board.
(C) Meetings and Quorum. The Executive Committee shall meet as often
as may be deemed necessary and expedient at such times and places as shall
be determined by the members of the Executive Committee. A majority of the
members of the Executive Committee shall constitute a quorum. The Chairman
of the Board shall preside at meetings thereof, and, in his absence, the
Executive Committee may appoint any other member of the Executive Committee
to preside.
SECTION 2. Audit Committee.
(A) The Board may by resolution passed by a majority of the whole
Board designate an Audit Committee consisting of three or more directors.
Vacancies may be filled by the Board at any time and any member of the
Audit Committee shall be subject to removal, with or without cause, at any
time by resolution passed by a majority of the whole Board.
(B) The Audit Committee shall review with the independent public
accountants for the Corporation the scope of their examination, receive
copies of the reports of such accountants, meet with representatives of
such accountants for the purpose of reviewing and considering questions
relating to such accountants' examination and such reports, review, either
directly or through such accountants, the internal accounting and auditing
procedures of the Corporation, report the results of the foregoing to the
Board and act upon such other matters as may be referred to it by the
Board.
At each meeting of the Board the Audit Committee shall make a report
of all action taken by it since its last report to the Board.
(C) Meetings and Quorum. The Audit Committee shall meet as often as
may be deemed necessary and expedient at such times and places as shall be
determined by the members of the Audit Committee. A majority of the members
of the Audit Committee shall constitute a quorum. The Audit Committee may
appoint any member to preside at meetings thereof.
SECTION 3. Other Committees. The Board may, by resolution passed by a
majority of the whole Board, designate other committees, each committee to
consist of two or more directors and to have such duties and functions as
shall be provided in such resolution. The Board shall have the power to
change the members of any such committee at any time, to fill vacancies and
to discharge any such committee, either with or without cause, at any time.
ARTICLE V
OFFICERS
SECTION 1. Officers and Executive Officers of the Corporation. The
officers of the Corporation shall be:
(a) a Chairman of the Board;
(b) one or more Vice Chairmen of the Board;
(c) a President;
(d) one or more Vice Presidents, one or more of whom may be
designated as Executive Vice President, one or more of whom may be
designated as Senior Vice President, and one or more of whom may be
designated as Administrative Vice President;
(e) a Secretary and, as and when designated, a Deputy Secretary and
one or more Assistant Secretaries;
(f) a Treasurer and, as and when designated, a Deputy Treasurer and
one or more Assistant Treasurers;
(g) a Controller and, as and when designated, a Deputy Controller and
one or more Assistant Controllers;
(h) an Auditor and, as and when designated, one or more Assistant
Auditors. The following officers are hereby designated the Executive
Officers of the Corporation:
Chairman of the Board;
Vice Chairmen of the Board;
President;
Executive Vice Presidents;
Senior Vice Presidents;
Administrative Vice Presidents;
Secretary;
Treasurer;
Controller;
Auditor.
SECTION 2. Election and Appointment and Term of Office. Each
Executive Officer shall be elected by the Board at its annual meeting and
hold office until the next annual meeting of the Board and until his
successor is elected or until his earlier death, resignation or removal in
the manner hereinafter provided.
The Board may elect such other officers and designate such other
Executive Officers as it deems necessary and such other officers shall have
such authority and shall perform such duties as the Board may prescribe.
The Chairman of the Board acting jointly with any Vice Chairman of
the Board or the President, by written designation filed with the
Secretary, may appoint all officers, other than Executive Officers, of the
Corporation. Subject to the authority of the Board, the persons having
authority to appoint an officer shall also have authority to fix the salary
of such officer.
If additional officers are elected by the Board during the year, each
of them shall hold office until the next annual meeting of the Board at
which officers are regularly elected and until his successor is elected or
appointed or until his earlier death, resignation or removal in the manner
hereinafter provided.
SECTION 3. Resignation, Removal and Vacancies. Any officer may resign
at any time by giving written notice to the Chairman of the Board, any Vice
Chairman of the Board, the President or the Secretary, and such resignation
shall be effective when the notice is delivered, unless the notice
specifies a later effective date.
All officers and agents elected or appointed shall be subject to
removal at any time by the Board with or without cause. All appointed
officers may be removed at any time by the Chairman of the Board acting
jointly with any Vice Chairman of the Board or the President, by written
designation filed with the Secretary.
A vacancy in any office may be filled for the unexpired portion of
the term in the same manner as provided for election or appointment to such
office.
SECTION 4. Duties and Functions.
(A) Chairman of the Board. The Chairman of the Board, if present,
shall preside at all meetings of the shareholders and the Board. If
designated by Board resolution, he shall be Chief Executive Officer of the
Corporation, and if so designated, shall be vested with executive control
and management of the business and affairs of the Corporation and have the
direction of all other officers, agents and employees. He shall perform all
such other duties as are incident to the office or as may be properly
required of him by the Board, subject in all matters to the control of the
Board.
(B) Vice Chairmen of the Board. The Vice Chairman of the Board with
seniority of office, in the absence of the Chairman of the Board, shall
preside at all meetings of the shareholders and the Board. Each Vice
Chairman of the Board shall have such powers, authority and duties as may
be delegated to him from time to time by the Board or the Chairman of the
Board.
(C) The President. The President, in the absence of the Chairman of
the Board and all the Vice Chairmen of the Board, shall preside at all
meetings of the shareholders and the Board. If designated by Board
resolution, he shall be Chief Executive Officer of the Corporation, and if
so designated, shall be vested with executive control and management of the
business and affairs of the Corporation and have the direction of all other
officers, agents and employees. He shall have such powers, authority and
duties as may be delegated to him from time to time by the Board or the
Chairman of the Board.
(D) Executive Vice Presidents. The Executive Vice Presidents shall
have such powers, authority and duties as may be delegated or assigned to
them from time to time by the Board, the Chairman of the Board, any Vice
Chairman of the Board or the President.
(E) Senior Vice Presidents. The Senior Vice Presidents shall have
such powers, authority and duties as may be delegated or assigned to them
from time to time by the Board, the Chairman of the Board, any Vice
Chairman of the Board or the President.
(F) Administrative Vice Presidents. The Administrative Vice
Presidents shall have such powers, authority and duties as may be delegated
or assigned to them from time to time by the Board, the Chairman of the
Board, any Vice Chairman of the Board or the President.
(G) Vice Presidents. The Vice Presidents shall have such powers,
authority and duties as may be delegated or assigned to them from time to
time by the Board, the Chairman of the Board, any Vice Chairman of the
Board or the President.
(H) Secretary. The Secretary shall attend to the giving and serving
of all notices required by law or these By-laws; shall be the custodian of
the corporate seal and shall affix and attest the same to all papers
requiring it; shall have responsibility for preparing minutes of the
meetings of the Board and shareholders; and shall in general perform all
the duties incident to the office of the Secretary, subject in all matters
to the control of the Board.
(I) Treasurer. The Treasurer shall have custody and control of the
funds and securities of the Corporation and shall perform all such other
duties as are incident to his office or that may be properly required of
him by the Board, the Chairman of the Board, any Vice Chairman of the Board
or the President.
(J) Controller. The Controller shall maintain adequate records of all
assets, liabilities and transactions of the Corporation; shall see that
adequate audits thereof are currently and regularly made; shall have
general supervision of the preparation of the Corporation's balance sheets,
income accounts and other financial statements or records; and shall
perform such other duties as shall, from time to time, be assigned to him
by the Board, the Chairman of the Board, any Vice Chairman of the Board or
the President. These duties and powers shall extend to all subsidiary
corporations and so far as the Board, the Chairman of the Board, any Vice
Chairman of the Board or the President may deem practicable, to all
affiliated corporations.
(K) Auditor. The Auditor shall review the accounting, financial and
related operations of the Corporation and shall be responsible for
measuring the effectiveness of various controls established for the
Corporation. His duties shall include, without limitation, the appraisal of
procedures, verifying the extent of compliance with formal controls and the
prevention and detection of fraud or dishonesty and such other duties as
shall, from time to time, be assigned to him by the Board, the Chairman of
the Board, any Vice Chairman of the Board or the President. These duties
and powers shall extend to all subsidiary corporations and so far as the
Board, any Chairman of the Board, any Vice Chairman of the Board or the
President may deem practicable, to all affiliated corporations.
ARTICLE VI
CONTRACTS, CHECKS, DRAFTS, BANK ACCOUNTS, ETC.
SECTION 1. Borrowing Authority. The Chairman of the Board, any Vice
Chairman of the Board, the President, the Senior Vice President supervising
the law function, the Treasurer and any other officer, employee, or agent
of the Corporation designated by the Board (collectively, "Designated
Officers") shall, subject to Section 3 and Section 7 hereof, have the
power, acting jointly with any officer designated by the Board as the Chief
Financial Officer or the Treasurer (collectively, the "Financial
Officers"), to authorize the establishment of borrowing facilities, the
borrowing of money, the issuance of debt obligations, or the guaranteeing
of debt obligations of others on behalf of the Corporation. Any individual
acting as the approving Financial Officer may not act as one of the
approving Designated Officers on the same authorization.
SECTION 2. Delegation of Authority. Any Financial Officer of the
Corporation acting jointly with any Designated Officer may delegate the
authority to establish borrowing facilities or to borrow money or to issue
debt obligations or to guarantee the debt obligations of others or any
combination of the foregoing to any person(s) on behalf of the Corporation,
provided each obligation to be incurred under each such authority does not
exceed the equivalent of Ten Million United States Dollars (U.S.
$10,000,000). Each delegated authority may not be redelegated. Any
individual acting as the approving Financial Officer may not act as one of
the approving Designated Officers on the same authorization.
SECTION 3. Limitation of Authority. The Finance Committee of the Board
of Directors shall, subject to Section 7 and to the last sentence of this
Section 3, retain authority for and, in its sole discretion, shall
authorize (a) any establishment of borrowing facilities, borrowing of money
or issuance of debt obligations by the Corporation which exceeds the
equivalent of Ten Million United States Dollars (U.S. $10,000,000) and
which has a maturity of one year or more from the effective date of the
issuance or borrowing and (b) any guarantee of any debt obligation of
non-affiliated entities by the Corporation which guaranty is for an amount
exceeding the equivalent of Ten Million United States Dollars (U.S.
$10,000,000) and which underlying obligation has a maturity of one year or
more from the effective date of the issuance or borrowing. The foregoing
limitations shall not apply, however, to those borrowings, debt issuances,
or guaranties of debt obligations made or delivered, under or in connection
with a borrowing facility or program previously approved by the Board of
Directors or the Finance Committee or to such types of transactions with or
on behalf of affiliated entities.
SECTION 4. Execution of Documents. The Designated Officers, the
Financial Officers, and any other officer, employee or agent of the
Corporation designated by the Board shall have power, acting alone, to
execute and deliver, in the name and on behalf of the Corporation, (a)
mortgages, bonds, debentures, notes, checks, drafts and other orders
evidencing the borrowing or guaranteeing (when so authorized as provided in
Section 1, 2, 3 or 7) or payment of money and (b) deeds, leases, contracts
and other agreements and documents. Each such named officer empowered to
execute and deliver the aforesaid documents and any such other officer,
employee or agent so designated by the Board pursuant to the first sentence
of this Section 4 may delegate such power (including authority to
redelegate) by written instrument to other officers, employees or agents of
the Corporation.
SECTION 5. Deposits. All funds of the Corporation not otherwise
employed shall be deposited from time to time to the credit of the
Corporation or otherwise with such banks or other financial institutions as
may be designated by the Board, by any Designated Officer, by any Financial
Officer, or by any other officer, employee or agent of the Corporation so
designated by the Board. Each such named officer and any such other
officer, employee or agent so authorized by the Board may delegate such
power (including authority to redelegate) by written instrument to other
officers, employees or agents of the Corporation.
SECTION 6. Proxies in Respect of Shares or Other Securities of Other
Corporations. Any Designated Officer and any Financial Officer shall have
the authority (a) to appoint from time to time an agent or agents of the
Corporation to exercise in the name and on behalf of the Corporation the
powers and rights which the Corporation may have as the holder of shares or
other securities in any other corporation, (b) to vote or consent in
respect of such shares or securities and (c) to execute or cause to be
executed in the name and on behalf of the Corporation and under its
corporate seal, or otherwise, such written proxies, powers of attorney or
other instruments as he may deem necessary or proper in order that the
Corporation may exercise such powers and rights. Any Designated Officer and
any Financial Officer may instruct any person or persons appointed as
aforesaid as to the manner of exercising such powers and rights.
SECTION 7. Guaranty Authority in Respect of the Oil Pollution Act of
1990. Pursuant to the Oil Pollution Act of 1990, rules and regulations
promulgated thereunder, including without limitation those at 33 C.F.R.
Part 138, or any amendments thereto, successor legislation, rules, or
regulations, the Corporation, from time to time, may provide to agencies of
the United States of America financial guaranties for entities who
transport for the Corporation or any of its affiliates into the waters of
the United States of America. Notwithstanding anything in these By-laws to
the contrary, any person designated by the Board as a member of the "Core
Group", the Controller, the Treasurer, and any other officer, employee, or
agent designated by the Board (collectively, "Corporate Officers") shall
have the power,
acting jointly with the person designated as (a) the President of any
operating division or subsidiary of the Corporation requesting the guaranty
(the "Division"), (b) a Group Vice President of a Division, (c) an
Administrative Vice President of the Division, or (d) a Vice President of
the Division (collectively, "Divisional Officers") to authorize the
issuance of such guaranties. Any such guaranties may be approved as
provided in this Section 7 for any amount and for any term. Any individual
acting as the approving Corporate Officer may not act as an approving
Divisional Officer with respect to the same transaction.
ARTICLE VII
BOOKS AND RECORDS
The Corporation shall keep correct and complete books and records of
account and shall keep minutes of the proceedings of its shareholders, the
Board, the Executive Committee, the Audit Committee, and such other
committees of the Board as the Board may by resolution designate and shall
keep at its registered office or principal place of business, or at the
office of its transfer agent or registrar, a record of its shareholders,
giving the names and addresses of all shareholders, and the number and
class of the shares held by each.
ARTICLE VIII
SHARES AND THEIR TRANSFER; FIXING RECORD DATE
SECTION 1. Certificates for Shares. Every owner of shares of the
Corporation shall be entitled to have a certificate which shall set forth
upon the face or back of such certificate, or shall state that the
Corporation will furnish to any shareholder upon request and without
charge, a full statement of the designations, preferences, limitations and
relative rights of the shares of each class of shares authorized to be
issued, and the variations in the relative rights and preferences between
the shares of each series of any preferred or special class of shares, so
far as the same have been fixed and determined, and the authority of the
Board to fix and determine the relative rights and preferences of
subsequent series of such preferred or special classes of shares.
Each certificate representing shares shall state upon the face
thereof that the Corporation is organized under the laws of the
Commonwealth of Kentucky; the name of the person to whom issued; the number
and class of shares, and the designation of the series, if any, which such
certificate represents; and the par value of each share represented by such
certificate, or a statement that the shares are without par value. Such
certificate shall otherwise be in such form as the Board shall prescribe.
Each such certificate shall be signed by, or in the name of the
Corporation by, the Chairman of the Board, any Vice Chairman of the Board,
the President or a Vice President and by the Secretary, the Deputy
Secretary or an Assistant Secretary of the Corporation and shall be sealed
with the corporate seal or contain a facsimile thereof. In case any officer
who has signed or whose facsimile signature has been placed upon a
certificate shall have ceased to be such officer before such certificate is
issued, it may nevertheless be issued by the Corporation with the same
effect as if he were such officer at the date of issue. Where any such
certificate is manually countersigned by a transfer agent or registrar
(other than the Corporation itself or an employee of the Corporation), any
of the other signatures on the certificate may be a facsimile.
SECTION 2. Record. A record shall be kept of the name of the person,
firm or corporation owning the shares represented by each certificate for
shares of the Corporation issued, the number of shares represented by each
such certificate, and the date thereof, and, in the case of cancellation,
the date of cancellation. Except as otherwise expressly required by law,
the person in whose name shares stand on the books of the Corporation shall
be deemed the owner thereof for all purposes as regards the Corporation.
SECTION 3. Transfer of Shares. Transfers of shares of the Corporation
shall be made only on the books of the Corporation by the registered holder
thereof, or by his attorney thereunto duly authorized by written power of
attorney duly executed and filed with the Secretary or with a transfer
agent appointed as provided in Section 4 of this Article, and on the
surrender of the certificate or certificates for such shares properly
endorsed.
SECTION 4. Regulations. The Board may make such rules and regulations
as it may deem expedient, not inconsistent with these By-laws, concerning
the issue, transfer and registration of certificates for shares of the
Corporation. The Board may appoint or authorize any officer or officers to
appoint one or more transfer agents and one or more registrars and may
require all certificates for shares to bear the signature or signatures of
any of them.
SECTION 5. Lost, Stolen, Destroyed or Mutilated Certificates. The
holder of any shares of the Corporation shall immediately notify the
Corporation of any loss, theft or mutilation of the certificate therefor.
The Corporation may issue a new certificate for shares in the place of any
certificate theretofore issued by it and alleged to have been lost, stolen,
destroyed or mutilated, and the Board, the Chairman of the Board, any Vice
Chairman of the Board, the President or the Secretary may, in its or his
discretion, require the owner of the lost, stolen, mutilated or destroyed
certificate or his legal representatives to give the Corporation a bond in
such sum, limited or unlimited, in such form and with such surety or
sureties as the Board shall in its discretion determine, to indemnify the
Corporation against any claim that may be made against it on account of the
alleged loss, theft, mutilation or destruction of any such certificate or
the issuance of any such new certificate.
SECTION 6. Fixing Date for Determination of Shareholders of Record.
In order that the Corporation may determine the shareholders entitled to
notice of or to vote at any meeting of shareholders or any adjournment
thereof, or to express consent to corporate action in writing without a
meeting, or entitled to receive payment of any dividend or other
distribution or allotment of any rights, or entitled to exercise any rights
in respect of any change, conversion or exchange of shares or for the
purpose of any other lawful action, the Board may fix, in advance, a record
date, which shall not be more than seventy nor less than ten days before
the date of such meeting, nor more than seventy days prior to any other
action. A determination of shareholders entitled to notice of or to vote at
a meeting of the shareholders shall apply to any adjournment of the
meeting; provided, however, that the Board may fix a new record date for
the adjourned meeting.
ARTICLE IX
SEAL
The Board shall provide a corporate seal, which shall be in the form
of a circle and shall bear the full name of the Corporation.
ARTICLE X
FISCAL YEAR
The fiscal year of the Corporation shall begin on the first day of
October in each year.
ARTICLE XI
INDEMNIFICATION
SECTION 1. Every person who is or was an officer or employee of the
Corporation or of any other corporation or entity in which he served as a
director, officer or employee at the request of the Corporation
(hereinafter collectively referred to as a "Covered Person"), shall be
indemnified by the Corporation against any and all reasonable costs and
expenses (including but not limited to attorney's fees) and any liabilities
(including but not limited to judgments, fines, penalties and reasonable
settlements) that may be paid by or imposed against him in connection with
or resulting from any pending, threatened or completed claim, action, suit
or proceeding (whether brought by or in the right of the Corporation or
such other corporation or entity or otherwise), and whether, civil,
criminal, administrative, investigative or legislative (including any
appeal relating thereto), in which he may be involved, as a party or
witness or otherwise, by reason of his being or having been an officer or
employee of the Corporation or a director, officer or employee of such
other corporation or entity, or by reasons of any action taken or not taken
in such capacity, whether or not he continues to be such at the time such
liability or expense shall have been paid or imposed, if the Covered
Person:
(a) has been successful on the merits or otherwise with respect to
such claim, action, suit or proceeding; or
(b) acted in good faith, in what he reasonably believed to be the
best interests of the Corporation or such other corporation or entity, as
the case may be, and in addition, in any criminal action or proceeding, had
no reasonable cause to believe that his conduct was unlawful. As used in
this Article XI, the terms "expense" and "liability" shall include, but not
be limited to, counsel fees and disbursements and amounts of judgments,
fines or penalties against, and reasonable amounts paid in settlement by, a
Covered Person. The termination of any claim, action, suit or proceeding by
judgment, settlement (whether with or without court approval), conviction
or upon a plea of guilty or nolo contendere, or its equivalent, shall not
create a presumption that a Covered Person did not meet the standards of
conduct set forth in paragraph (b) of this Section 1.
SECTION 2. Indemnification under paragraph (b) of Section 1 shall be
made unless it is determined by any of the following that the Covered
Person has not met the standard of conduct set forth in paragraph (b) of
Section 1:
(a) the Board, acting by a quorum consisting of directors who were
not parties to (or who are determined to have been successful with respect
to) the claim, action, suit or proceeding;
(b) a committee of the Board established pursuant to Section 3 of
Article IV of the By-laws consisting of directors who were not parties to
(or who are determined to have been successful with respect to) the claim,
action, suit or proceeding;
(c) any officer or group of officers of the Corporation who, by
resolution adopted by the Board, has been given authority to make such
determinations;
(d) either of the following selected by the Board if a disinterested
committee of the Board (as described in paragraph (b) of this Section 2)
cannot be obtained or by the person(s) designated in paragraphs (a), (b) or
(c) of this Section 2:
(1) independent legal counsel (who may be the regular counsel of the
Corporation) who has delivered to the Corporation a written determination;
or
(2) an arbitrator or a panel of arbitrators (which panel may include
directors, officers, employees or agents of the Corporation) who has
delivered to the Corporation a written determination.
SECTION 3. Expenses incurred with respect to any claim, action, suit
or proceeding of the character described in Section 1 of this Article XI
shall be advanced to a Covered Person by the Corporation prior to the final
disposition thereof, but the Covered Person shall be obligated to repay
such advances if it is ultimately determined that he is not entitled to
indemnification. As a condition to advancing expenses hereunder, the
Corporation may require the Covered Person to sign a written instrument
acknowledging his obligation to repay any advances hereunder if it is
ultimately determined he is not entitled to indemnity.
Notwithstanding the preceding paragraph, the Corporation may refuse
to advance expenses or may discontinue advancing expenses to a Covered
Person if such advancement is determined by the Corporation, in its sole
and exclusive discretion, not to be in the best interest of the
Corporation.
SECTION 4. Notwithstanding anything in this Article XI to the
contrary, no person shall be indemnified in respect of any claim, action,
suit or proceeding initiated by such person or his personal or legal
representative, or which involved the voluntary solicitation or
intervention of such person or his personal or legal representative (other
than an action to enforce indemnification rights hereunder or an action
initiated with the approval of a majority of the Board).
SECTION 5. The rights of indemnification provided in this Article XI
shall be in addition to any other rights to which any Covered Person may
otherwise be entitled to by contract, vote of shareholders or disinterested
directors, other corporate action or otherwise; and in the event of any
such person's death, such rights shall extend to his heirs and legal
representatives.
ARTICLE XII
AMENDMENTS
Any By-law may be adopted, repealed, altered or amended by the Board
at any regular or special meeting thereof. The shareholders of the
Corporation shall have the power to amend, alter to repeal any By-law only
to the extent and in the manner provided in the Second Restated Articles of
Incorporation of the Corporation.